Lardear v. Super Fresh Food Markets Inc. et al
MEMORANDUM OPINION re 50 MOTION for Summary Judgment, and 52 MOTION for Summary Judgment. Signed by Judge Richard G. Andrews on 7/16/2013. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 11-1148-RGA
SUPER FRESH FOOD MARKETS,
INC., et al.,
Jeffrey K. Martin, Esq., Martin & Associates, P .A., Wilmington, DE, Attorney for
Joshua H. Meyeroff, Esq., Wharton Levin Ehrmantrout & Klein, P.A., Wilmington, DE;
Arlus J. Stephens, Esq., Lorrie E. Bradley, Esq., Murphy Anderson PLLC, Washington, D.C.,
Attorneys for Defendant United Food and Commercial Workers Local27.
Brian M. Rostocki, Esq., Reed Smith LLP, Wilmington, DE; Don Innamorato, Esq., John
McDonald, Esq., Reed Smith LLP, Princeton, NJ, Attorneys for Defendant Super Fresh Food
Presently before the Court are Defendant United Food and Commercial Workers Local
27's Motion for Summary Judgment (D.I. 50) and associated briefing (D.I. 51, 55, 57), and
Defendant Super Fresh Food Markets, Inc.'s Motion for Summary Judgment (D.I. 52) and
associated briefing (D.I. 53, 55, 58). For the reasons set forth herein, both Defendants' Motions
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law."
FED.R.CIV.P. 56(a). The moving party has the initial burden of proving the absence of a
genuinely disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 4 77
U.S. 317, 330 (1986). Material facts are those "that could affect the outcome" of the proceeding,
and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a
reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d
177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The burden on the moving party may be discharged by pointing out to the district court that there
is an absence of evidence supporting the nonmoving party's case. Celotex, 477 U.S. at 323.
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Williams v. Borough ofWest Chester, Pa., 891 F.2d 458,460-61 (3d Cir. 1989). A non-moving
party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or other
materials; or (B) showing that the materials cited [by the opposing party] do not establish the
absence ... of a genuine dispute .... " FED.R.CIV.P. 56(c)(1).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476
F .3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49;
see Matsushita Elec. Indus. Co., 475 U.S. at 586-87 ("Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for
trial."'). If the non-moving party fails to make a sufficient showing on an essential element of its
case with respect to which it has the burden of proof, the moving party is entitled to judgment as
a matter oflaw. See Celotex Corp., 477 U.S. at 322.
Plaintiff Joseph Lardear filed this action under the National Labor Relations Act against
his former employer, Super Fresh, for alleged breach of the collective bargaining agreement
(Count I), and Local27 for alleged breach ofthe duty of fair representation (Count III). 1 (D.I. 1).
During the relevant period, Lardear was a member ofLocal27 and worked at Super Fresh's
The parties stipulated to the dismissal of Count II, in which the defendant was United
Food and Commercial Workers International Union. (D.I. 15).
customer service desk. (D.I. 53-3 at 93-94; D.l. 51-1, Pl. Dep. App'x 3 at 35). Local27 and
Super Fresh were parties to a Collective Bargaining Agreement ("CBA"). (D.I. 51-1 at 13-4 7).
Lardear's duties included processing Western Union transactions. (D.I. 51-1, Pl. Dep.
App'x 3 at 27-28). He was trained on Western Union procedures and received a handbook on
April I, 2011. Id at 31-32. On April II, 2011, Lardear processed a Western Union international
money transfer for a customer, who later claimed in a statement that she was given $133.28less
than she was entitled to receive. (D.I. 51-1, Waite Decl. ~ 14). While the source of and intent
behind the discrepancy is disputed, it is undisputed that Lardear created a false entry in the cash
register to reconcile the dollar amount of register transactions and the cash in the till, instead of
voiding the transaction or seeking help from a manager or coworker. (D.I. 51-1, Pl. Dep. App'x 3
at 29-30, 134-38). Lardear admitted that this was a violation of company policy that could result
in his immediate discharge. (D.I. 51-1, Pl. Dep. App'x 2 at 172-73).
Super Fresh investigated the incident and suspended, then ultimately terminated, Lardear
for knowingly creating a false business record in violation of company policy. 2 (D.I. 51-1, Waite
11, 20, 24; D.I.
15; D.l. 53-4 at 11-12, 13, 140, 150, 151-52). On Aprill4, 2011,
Lardear was arrested for theft; the charges were later dropped. (D.I. 1, ~~ 13-14). Local27 filed
a grievance to challenge Lardear's suspension under the CBA with Super Fresh. Union
representative Carol Waite handled the grievance. Her investigation included speaking with
Lardear; speaking with the Super Fresh co-manager and loss prevention specialist; reviewing
documents including the register tape, the receipt for the Western Union transaction, the
The terms of Lardear' s suspension are not clear from the record. Neither are the
circumstances in which Lardear' s status changed from suspended to terminated. It does not
appear this distinction is material to any issue before the Court.
customer's written statement, and the sign-in sheet for Lardear's Western Union training;
reviewing surveillance video of Lardear handling the cash register in connection with the
transaction; and contacting other stores to determine proper procedures for Western Union
transactions. (D.I. 51-1, Waite
13, 14, 16, 17, 18).
The parties met to attempt to resolve the grievance on May 12, 2011. ld
suspension was attributed to the Western Union transaction and violation of company policy. ld
Waite stated there was no evidence that Lardear stole anything, and explained to him that he was
facing termination not for stealing, but for violation of company policy. (ld
22, 23). Super
Fresh upheld its decision to terminate Lardear, and Local 27 determined it could not take the
grievance to arbitration based on the merits of the case. /d.
decision with Lardear by letter dated May 17, 2011. Id
24, 25. Local27 shared its
(D .I. 51-1 at 44). Lardear
responded by requesting a copy of Local 27's grievance on May 23, 2011, and Local27
responded and enclosed a copy of the grievance on May 25,2011. (D.I. 51-1, Pl. Dep. App'x 3
at 20-21; D.l. 51-1, Waite Dec!.~ 26; D.I. 51-1 at 46, 48).
1. Local 27's Motion
Local 27 moved for summary judgment on Count III on the basis that Lardear has not put
forth any evidence that Local 27 breached the duty of fair representation it owes Lardear. A
union breaches that duty if it acts arbitrarily, discriminatorily, or in bad faith. Vaca v. Sipes, 386
U.S. 171, 190 (1967). Local27 briefed all three categories (D.I. 51 at 15-20); in opposition,
Lardear asserted Local 27 breached the duty of fair representation by acting in bad faith,
specifically by failing to communicate the reason for his termination, by not requesting dismissal
of the criminal charges, and by not taking his grievance to arbitration. (D.I. 55 at 5, 18, 20). The
Court thus need not reach whether Local 27 acted arbitrarily or discriminatorily.
Lardear claims Local27 failed to communicate with him about his discharge, including
by sending him a copy of the grievance, responding to his letters, and providing the basis for his
discharge. A union's failure to keep a discharged employee informed about its decision to pursue
a grievance or not does not constitute a breach of the duty of fair representation, particularly
where, as here, the plaintiff suffered no prejudice due to the union's failure to respond. See
Bazarte v. Union Transportation Union, 429 F.2d 868, 872 (3d Cir. 1970). In Bazarte, the
union's grievance officer did not inform the plaintiff that the union was not prosecuting the
grievance any further, and did not respond to a letter asking for documentation and assistance.
Id at 871. Here, the undisputed record shows Lardear participated in Local 27's investigation
and the parties' attempt to resolve the grievance, and did in fact receive the grievance along with
other explanatory correspondence from Local27. (D.I. 51-1, Pl. Dep. App'x 3 at 21-23; D.I. 51l,Waite Decl.
26-27; D.I. 51-1 at 44, 48, 52). Lardear was also informed that he faced
termination because he violated company policy. (D.I. 51-1, Waite Decl.
20, 22-23). Lardear
has presented no evidence of prejudice. The extent of Local 27's communications with Lardear
do not constitute a breach of the duty of fair representation.
Lardear also claims Local 27 breached its duty by not assisting in procuring the dismissal
of the pending criminal charges Super Fresh brought against him stemming from the Western
Union transaction, noting Waite's statements that there was no evidence that Lardear stole
anything. Lardear asserts that he "specifically asked Local27 to help him with the
unsubstantiated criminal charges" in his letter of May 23, and that Local27 "was quite aware that
there was no basis for such charges and had a position superior to Mr. Lardear's with regard to
contacting the employer to have such baseless charges removed." (D.I. 55 at 13, 14).
Local 27 responds by asserting that an employer's criminal charges against a union
member are outside the scope of the union's duty of fair representation. Local 27 notes that the
scope of the duty of fair representation is commensurate with the scope of the union's statutory
authority as the exclusive bargaining agent. See Bensel v. Allied Pilots Ass 'n, 387 F.3d 298, 312
(3d Cir. 2004); Freeman v. Local Union No. 135,746 F.2d 1316, 1320-21 (7th Cir. 1984) ("If a
union does not serve as the exclusive agent for the members of the bargaining unit with respect to
a particular matter, there is no corresponding duty of fair representation."). Local27 also notes
that state law claims by employees against employers, including those for false arrest, are not
preempted by collective bargaining law as they are beyond the scope of the labor contract. See
Cabibbo v. Parsons Inspection & Maintenance Corp., 2009 WL 3074731, *5-6 (D.N.J. Sept. 23,
2009); Cole v. Pathmark ofFairlawn, 672 F.Supp. 796, 802 (D.N.J. 1987). Here, the CBA
reserves Super Fresh's right to control its property and operate its business as it sees fit. (D.I. 51I at 15).
Local 27's response does not squarely provide that as a matter of law, unions have no
duty to assist in the context of an employer bringing charges against an employee based on the
conduct that led to the discharge. It is true that the scope of the duty of fair representation is
commensurate with the scope of the union's statutory authority as the exclusive bargaining agent.
Bensel, 387 F.3d at 312; Freeman, 746 F.2d at 1320-21. Local 27's cases do provide that an
employee 's state law claims against the employer that do not require interpretation of the labor
contract are not encompassed by duty ofrepresentation claims. Cabibbo, 2009 WL 3074731, at
*5-6; see also Cramer v. Consolidated Freightways, 255 F.3d 683, 689-92 (9th Cir. 2001).
Illegal conduct is not encompassed by the CBA. !d. at 695-96. Local 27 has not cited any case
law addressing a union's duty with respect to state law claims brought by the employer.
For Lardear's part, Lardear does not provide any basis to conclude that Local 27's duty
does encompass handling of criminal charges brought by the employer. Lardear cites no cases in
legal support of that premise. As a factual matter, his May 23 letter does not ask Local27 for
assistance with the charges as he asserts it does; in it he stated only, "I need to know if Super
Fresh is dropping the unsubstantiated theft charges." (D.I. 55-1 at 46; see D.I. 1, ~ 19).
Local 27 has met its initial burden on this issue by proving the absence of a genuinely
disputed material fact relative to the handling ofLardear's charges. Lardear has failed to make a
sufficient showing that Local27 had a duty to assist Lardear in handling the criminal charges
brought by Super Fresh- an essential element of his case with respect to which he has the
burden of proof. I note, without deciding, that it would be logical for employer state law claims
to fall outside the union's duty just as employee state law claims do. The arrest and criminal
charges are based on state law, and do not require any interpretation of the labor contract; indeed,
a cursory reference to the CBA puts the charges outside the contract's scope. (D.I. 51-1 at 15).
The criminal charges were handled, and ultimately dismissed, without any apparent reference to
or interpretation of the CBA. (D.I. 1, ~ 14; D.I. 55 at 13-14); see Cramer, 255 F.3d at 691-92.
Lardear has shown no basis to conclude that Local27 had a duty to assist with the charges.
Lardear's third claim is that Local27 breached its duty of representation by acting in bad
faith by not taking his claim to arbitration. Local 27 points out Third Circuit law, which Lardear
does not dispute, providing that its duty to represent its members in good faith "does not confer
on an employee an absolute right to force his collective bargaining agent to press his complaint
all the way to the very end of the grievance procedures made possible by the collective
bargaining agreement." Bazarte, 429 F.2d at 872.
The union has an obligation in exercising its power as bargaining agent to act
fairly under the collective bargaining agreement and not to assert or press
grievances which it believes in good faith ·do not warrant such action. An
employee, therefore, is subject to the union's discretionary power to settle or even
to abandon a grievance, so long as it does not act arbitrarily, and this is true even
if it can later be demonstrated that the employee's claim was meritorious. It is
therefore essential to plaintiffs claim that there should have been proof of
arbitrary or bad-faith conduct on the part of the union in processing his grievance.
It follows from this that proof that the union may have acted negligently or
exercised poor judgment is not enough to support a claim of unfair representation.
ld (internal quotation and citations omitted).
Local 27 points to the undisputed facts of Local 27's investigation to argue that it validly
exercised its discretion in declining to arbitrate, including Lardear's admission that he did not
follow policy and that not doing so could result in termination; that he had been trained on the
procedures he failed to follow less than two weeks later; that the customer returned to the store
and wrote a statement saying that her transaction was improperly processed and she lost $133.28
as a result; and the depth of Local 27's investigation. (D.I. 51 at 13-14). In response, Lardear
submits that Local 27 failed to consider that at the grievance hearing, Lardear had already been
criminally charged, so he had to be "exceedingly careful at that time" to not incriminate himself.
Lardear also argues that there are genuine issues of material fact pertaining to whether he actually
stole the money. (D.I. 55 at 14-16).
Lardear's arguments, while material to whether he stole the $133.28, are not material to
the issue of whether Local27 acted in bad faith in exercising its discretion in processing
Lardear's grievance. See Vaca, 386 U.S. at 192-93 (finding error in evaluating a claim of an
improperly settled arbitration based on the merits of the grievance). While Lardear's point that
he had to avoid self-incrimination due to the pending charges is well taken, it is undisputed that
Lardear admitted to being trained in money order processing, to violating company policy, and to
understanding that such violations could result in termination of his employment. Lardear has
submitted no evidence that Local 27's reliance on his admissions and the remainder of Local 27's
investigation was in bad faith.
In sum, Lardear has not put forth any evidence that Local 27 breached its duty of fair
representation. Local 27's duty of representation does not encompass the level of
communication Lardear argues he was owed. Lardear has not shown that the duty encompasses
working toward dismissal of criminal charges brought by Super Fresh. Finally, Lardear's
argument that he did not actually steal the missing money does not show Local 27 acted in bad
faith in declining to arbitrate Lardear's grievance. Local 27's Motion is granted.
2. Super Fresh's Motion
Super Fresh moved for summary judgment on Count I on the grounds that Lardear cannot
prove that Local 27 violated its duty of fair representation, which is a required showing for the
conjoined wrongful termination action against Super Fresh. See Felice v. Sever, 985 F.2d 1221,
1226 (3d Cir. 1993). Lardear concurs that his claim against Super Fresh for breach of the CBA
cannot stand unless Local27 has breached its duty of fair representation. (D.I. 55 at 17) (citing
De/Costello v. lnt'l Broth. ofTeamsters, 462 U.S. 151, 163-64 (1983)). Lardear's claim against
Local 27 alleging breach of the duty of fair representation, together with his claim against Super
Fresh alleging breach of the collective bargaining agreement, is known as a hybrid suit, wherein
he must prove that the employer breached the collective bargaining agreement in order to prevail
on the breach of duty of fair representation claim against the union, and vice versa. See Felice,
985 F.2d at 1226. As explained supra, Lardear has not shown Local27 breached its duty of fair
representation. Super Fresh's Motion is therefore granted.
Super Fresh also moved for summary judgment on Count I on the grounds that its
discharge ofLardear did not breach the CBA with Local27. The Court need not reach this
For the reasons stated herein, Local 27's Motion and Super Fresh's Motion are both
granted. An appropriate order will follow.
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